With gay marriage ban in limbo, Charlottesville watches the courts

Thursday could be a busy day in the office of Charlottesville Circuit Court Clerk Llezelle Dugger—or it could be a day like any other.

A mandate to clerks statewide to begin issuing marriage licenses to gay couples who want them is due from the 4th Circuit Court of Appeals at 8am Thursday, August 21, a week and a day after the court denied a stay of its decision in Bostic v. Schaefer (initially, the word was Wednesday, but that changed late last week). The famously conservative court ruled in that case that the Commonwealth’s 2006 gay marriage ban was unconstitutional. But defendants in the suit have requested a stay from the Supreme Court while they wait for the justices to hear their eventual appeal. Considering SCOTUS granted just such a stay in the wake of a similar overturn of Utah’s gay marriage ban late last year, there was plenty of caution mixed in with the exhilaration as couples waited for word.

“It’s kind of schizophrenic,” said André Hakes, a local attorney who has made a tradition of showing up at the Charlottesville Circuit Court Clerk’s office on Valentine’s Day with her partner, Catherine Gillespie, to ask for a marriage license in a symbolic act of love and protest. If the highest court in the land was still silent as of Thursday morning, she and Gillespie would be among several couples knocking on Dugger’s door—this time with real hopes of walking out with that critical piece of paper. Considering Dugger knows of only one other clerk in Virginia who has promised to start issuing licenses with gusto the minute it’s possible, Hakes and Gillespie were setting themselves up to be among the first same-sex couples in the state to tie the knot here.

There are innumerable legal benefits to being married to your partner, said Hakes. As a lawyer, she’s good at counting them off. But those aren’t the real reasons she wants a legal union.

“We’ve been together 18 years,” she said. “I think we’re tired of sitting in the back of the bus.”

Still, she wasn’t counting her chickens, and as the time ticks down, a stay is looking more likely. Attorney General Mark Herring, who courted controversy by refusing to defend the Commonwealth’s gay marriage ban in the case in question, has officially told the Supreme Court he supports holding off on issuing licenses in Virginia until the justices rule.

“Throughout this process, we have fought for equality while also recognizing the need for an orderly process,” Herring said in a release Monday. The ban is clearly unconstitutional, he said. “However, a stay is warranted in light of the negative impact on Virginia children, families, and businesses if the Supreme Court eventually rules against marriage equality and forces an unwinding of Virginians’ marriages, adoptions, inheritances, or workplace benefits.”

“We can all say the reasonable thing to do would be to issue the stay, so nobody gets into a legal limbo,” said Dugger, “but we were all saying that before the 4th Circuit denied the stay.” A stay might be rational, she said, “but this isn’t the most rational of issues out there. There’s a lot of emotion and a lot of feeling in this.”

Whatever happens, “we’ll be ready,” Dugger said.

And if there’s no chance for a wedding this week, what will Hakes do?

“I’ll probably do laundry, go to the bank,” she said. “I’ll do all the things I’ve been doing for the last 18 years.”

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